Re Australian Federation of Construction Contractors; Ex parte Billing [1986] HCA 74; (1986) 68 ALR 416 (2 December 1986)

HIGH COURT OF AUSTRALIA

Re AUSTRALIAN FEDERATION OF CONSTRUCTION CONTRACTORS; Ex parte SIMON MICHAEL BILLING

F.C. 86/073

High Court of Australia

Gibbs C.J.(1), Mason(1), Wilson(1), Brennan(1), Deane(1) and Dawson(1) JJ.

CATCHWORDS

HEARING

Canberra

2:12:1986

Solicitors for the Prosecutor: Harman Drake-Brockman

Solicitors for the Second Respondent: Freehill, Hollingdale & Page

Solicitors for the Intervener: Australian Government Solicitor

DECISION

GIBBS C.J., MASON, WILSON, BRENNAN, DEANE AND DAWSON JJ.: This is the return of an order nisi made by Dawson J. for writs of mandamus and prohibition. The prosecutor is an employee of The Australian Builders' Labourers' Federated Union of Workers - Western Australian Branch ("the State B.L.F."), which is an association of employees registered under the provisions of the Industrial Relations Act 1979 (W.A.), as amended, ("the State Act"). He is not a member of the State B.L.F. Nor is he a member, or employee, or official of The Australian Building Construction Employees' and Builders Labourers' Federation ("the Federation"), a body whose registration as an organization under the provisions of the Conciliation and Arbitration Act 1904 (Cth), as amended, ("the Commonwealth Act") was cancelled by force of the Builders Labourers' Federation (Cancellation of Registration) Act 1986 (Cth) ("the Cancellation Act").

2. On 29 April 1986 the prosecutor sought leave to appear as an advocate in proceedings before The Australian Conciliation and Arbitration Commission ("the Commission") in Application C No. 8021 of 1986 to represent The Operative Plasterers' and Plaster Workers' Federation of Australia, an organization registered under the provisions of the Commonwealth Act, and its Western Australian counterpart, a body registered under the provisions of the State Act. Mr Commissioner Coleman ruled that he could not permit the prosecutor to appear. The Commissioner referred to s.4(6) of the Builders Labourers' Federation (Cancellation of Registration - Consequential Provisions) Act 1986 (Cth) ("the Consequential Provisions Act" or "the Act") and said that the prosecutor, being an employee of the State B.L.F., was employed by a "non-registered association" within the meaning of that expression in the Consequential Provisions Act. It is that ruling which is the subject of the present proceedings.

3. Mr Einfeld Q.C., counsel for the prosecutor, advances two arguments in support of the writs. The first is that, on the proper construction of the Consequential Provisions Act, the State B.L.F. is not a non-registered association. The material provisions of the Act are as follows. The long title recites that it is an Act to enact certain provisions consequential upon the cancellation of the registration of the Federation under the Commonwealth Act and for related purposes. Section 3 provides that in the Act, unless the contrary intention appears -



"'Federation' means -

was registered under the Conciliation and

Arbitration Act by the name 'The Australian

Building Construction Employees' and Builders

Labourers' Federation'; or

(b) if the name of that association has been or is

changed - that association under the new name;

...

'non-registered association' means -

(a) the Federation; or

(b) another association -

(i) that is not registered under the

Conciliation and Arbitration Act;

(ii) that was formed in or in connection with

the industry or a part of the industry

in or in connection with which

The Australian Building Construction

Employees' and Builders Labourers'

Federation was registered under the

Conciliation and Arbitration Act

immediately before the commencement of

the Builders Labourers' Federation

(Cancellation of Registration) Act 1986;

and

(iii) all or a majority of the members of

which are persons who are or have been

members of the Federation."

Section 4 includes the following sub-sections:

"(3) A non-registered association is not capable of

being a party to, and shall not be permitted

to intervene in, a proceeding before the

Commission and is not capable of being a party

to an award made by the Commission.

(4) Subject to sub-section (5), the Commission

does not have any powers under the

Conciliation and Arbitration Act in relation

to -

(a) an industrial dispute in so far as that

industrial dispute resulted from -

(i) an act done by a non-registered

association or by persons who are

members of a non-registered

association; or

(ii) an act done by an employer as

defined by section 4 of the

Conciliation and Arbitration Act in

relation to a non-registered

association or in relation to

persons who are members of a

non-registered association; or

(b) an industrial matter as defined by

section 70A of the Conciliation and

Arbitration Act in so far as that

industrial matter relates to a claim made

by a non-registered association or by

persons who are members of a

non-registered association.

(5) Nothing in this section prevents the

Commission from exercising powers under the

Conciliation and Arbitration Act in relation

to an industrial dispute in so far as that

industrial dispute involves members of an

organization of employees registered under

that Act who are also members of a

non-registered association.

(6) A person or an organization or association of

employees is not entitled to be represented by

an officer, employee, agent or member of a

non-registered association in any proceedings

before the Commission or the Registrar other

than an application by the non-registered

association under paragraph 5(1)(b) or an

application by the non-registered association

for registration under section 132 of the

Conciliation and Arbitration Act."

Section 5 lays down the conditions on which a non-registered association may seek registration under s.132 of the Commonwealth Act. Section 7 is directed to facilitating the transfer of former members of the Federation to other registered organizations. It provides that regulations may, in the circumstances described in the section, declare certain persons, usually employed in work of a specified kind or class in an industry in or in connection with which the Federation was registered, to be eligible for membership in an organization registered under the Commonwealth Act notwithstanding anything to the contrary in the rules of that organization.

4. Mr Einfeld's point of construction is a short one. It focusses on par.(b)(ii) of the definition of "non-registered association". It is not in contest that the State B.L.F. satisfies the requirements of pars.(b)(i) and (b)(iii). It is not registered under the Commonwealth Act. All or a majority of its members are persons who are or have been members of the Federation. Indeed, the membership rule of the Federation appears to provide for common membership of the State branch and the federal body. The words "Western Australian Branch" in the name of the State B.L.F. are clearly intended to identify it as a branch of the Federation. But par.(b)(ii) requires in addition that a non-registered association be one that was formed in or in connection with the industry or a part of the industry in or in connection with which the Federation was registered before its registration was cancelled. Mr Einfeld argues that the words of the paragraph identify an association that was formed to cover the industry or a part of the industry that was previously covered by the Federation. He observes that the State B.L.F. was not formed to cover the industry formerly covered by the Federation. It was not formed to cover any industry at all as the term "industry" is used in the Commonwealth Act. It was formed many years ago and registered under a State Act in relation to aspects of State activity. It is not, so it is said, consequential on the cancellation of the registration of the Federation to proscribe an association that was in existence long before the cancellation and whose constitution, functions, legal status, duties and obligations have nothing to do with the cancellation. It is sought to support the argument by reference to a descriptive phrase used recently in the joint judgment of this Court in Australian Building Construction Employees' and Builders Labourers' Federation v. The Commonwealth ("the B.L.F. Case") [1986] HCA 47; (1986) 60 ALJR 584, at p 586; [1986] HCA 47; 66 ALR 363, at p 367 where reference was made to a non-registered association as one "identified with the functions or membership of the Federation". But in the context of that observation the Court was not concerned to define precisely "non-registered association". The only questions under consideration in that case were as to the constitutional validity of the Cancellation Act and the Consequential Provisions Act. Reliance is also placed on a sentence in the second-reading speech of the Minister when introducing the Consequential Provisions Act, but that reliance is misplaced. Section 15AB of the Acts Interpretation Act 1901 (Cth), as amended, does not permit recourse to that speech for the purpose of departing from the ordinary meaning of the text unless either the meaning of the provision to be construed is ambiguous or obscure or in its ordinary meaning leads to a result that is manifestly absurd or is unreasonable. In our view neither of those conditions is satisfied in the present case. In any event, the Minister's speech does not purport to be an exhaustive description of the legislation and must be read in the context of the Bill itself and the explanatory memorandum.

5. In our opinion the State B.L.F. satisfies the terms of par.(b)(ii) of the definition of "non-registered association". It is an association that was formed in or in connection with the building industry, an industry in or in connection with which the Federation was formerly registered. The provision does not limit in any way the time at which the association was formed. Mr Einfeld places great stress on the purpose of the Act as being to proscribe associations that are formed to "cover" the industry or a part of the industry that was formerly covered by the Federation. But the Act does not use the word "cover". It speaks of an association formed "in or in connection with the industry". The essential requirement is the link with the building industry. The State B.L.F. has that link, notwithstanding that it is not the practice in Western Australia for associations of employees to be registered under the State Act by reference to an industry. The absence of an industry clause in the rules of the State B.L.F. is immaterial. A perusal of the eligibility rule makes it abundantly clear that the State B.L.F. is formed in connection with the building industry.

6. Then it is argued for the prosecutor that a construction should be adopted which gives effect to the character of the legislation as dealing with matters which are consequential upon the cancellation of the registration of the Federation. It is said that it cannot be consequential upon the deregistration to proscribe an association of employees which has been formed for many years and whose functions, legal status, duties and obligations have nothing to do with the deregistration. But the short answer to that submission is that it is clearly consequential upon the deregistration to prevent a State branch of the Federation from simply assuming, for the purposes of the Commonwealth Act, the mantle of the Federation in Western Australia. The Consequential Provisions Act does not interfere with the constitution, functions, legal status, duties and obligations of the State B.L.F. save in so far as they may impinge on the system of conciliation and arbitration established by the Commonwealth Act, as, for example, in relation to an application to the Commission pursuant to s.41(1)(d) of that Act. It is necessary to bear in mind the other indicia of a non-registered association which must be satisfied before the Consequential Provisions Act will affect it and, in particular, the requirement that it must be an association of which all or a majority of the members are or have been members of the Federation. Having regard to the common membership existing between the State B.L.F. and the Federation it is a natural consequence of the cancellation of the registration of the Federation that the activities of the State B.L.F. in the Commonwealth conciliation and arbitration sphere should be proscribed.

7. The second argument advanced for the prosecutor is that in so far as s.4(6) of the Consequential Provisions Act denies to an organization registered under the Commonwealth Act, in this case The Operative Plasterers' and Plaster Workers' Federation of Australia, any entitlement to be represented by an employee of a non-registered organization, in this case the prosecutor, the provision is beyond the power of the Commonwealth Parliament to legislate with respect to conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State. Such a provision is said to be too remote from the subject matter of the conciliation and arbitration of interstate disputes to fall within the power. It may be observed that in presenting the argument, counsel asserted several times that the sub-section operates to prevent both a present and a former employee or member of a proscribed association from participation in the proceedings of the Commission. If this were so, the argument would assume a different character. It would produce an internal inconsistency within the Act in that whilst s.7 encourages members of the Federation to transfer to certain other associations of workers that are registered organizations under the Commonwealth Act, s.4(6) would nevertheless deny to those members any opportunity of representing the substituted organization in proceedings in the Commission. But in making his submission, counsel presents too wide a view of s.4(6). It makes no reference to former officers, employees, agents or members of a non-registered association and clearly applies only to persons who satisfy one of the stated relationships at the time that representation is sought. So stated, the provision in our view is clearly within power.

8. We have already referred to the decision earlier this year of the Court in the B.L.F. Case when the general validity of both the Cancellation Act and the Consequential Provisions Act was upheld. Similar questions were ventilated in 1985 in Re Ludeke; Ex parte Australian Building Construction Employees' and Builders Labourers' Federation (No. 2) ("Re Ludeke") (1985) 60 ALJR 98; 62 ALR 407 when the Court upheld the validity of the Building Industry Act 1985 (Cth). In substance, each of those decisions reaffirmed the established position that the conciliation and arbitration power is wide enough to permit the Parliament to legislate with respect to the organization of employers and employees for the better operation of the system of conciliation and arbitration. The power extends to encompass the deprivation of an association of employers or employees of the benefits associated with registration. This was explained by the Court in the B.L.F. Case in the following terms (at p.586 of ALJR; pp.367-368 of ALR):

"This is because registration of organisations of

employers and employees is a central element in the

system of conciliation and arbitration which the

Conciliation and Arbitration Act established for

the prevention and settlement of interstate

industrial disputes. It follows that a law which

cancels or withdraws the registration of such an

organisation, like a law which authorises the

registration of an organisation, is a law which

operates on the subject matter of the power,

notwithstanding that its consequence is to deny to

the particular organisation a capacity to

participate in the system."

But the authority which denies even more directly the correctness of the constitutional argument advanced for the prosecutor is a passage from the judgment of Isaacs J. in Australian Commonwealth Shipping Board v. Federated Seamen's Union of Australasia [1925] HCA 27; (1925) 36 CLR 442, at pp 453-454, a passage which was cited with approval by the Court in Re Ludeke (at p 102 of ALJR; p 414 of ALR). His Honour said:

"The creation and equipment of representative

organizations both of employers and employees is an

incident to the power in s.51(xxxv) of the

Constitution. They are instruments for the more

effective exercise of the power ... Parliament may

adopt them as part of its mechanism. That

mechanism can be made and unmade at the will of

Parliament. It may be moulded, refashioned, or

abolished in any manner indicated. The step of

establishing an organization may be retraced at any

point and, for any reason declared by the Act, by

any officer in whom Parliament places confidence

for the purpose and to whom it gives the necessary

discretion."

Starke J., at p.463, spoke to the same effect as Isaacs J.

9. When regard is had to the close connection that must necessarily exist between the Federation and other non-registered associations, in this case the State B.L.F., it is not surprising that the Parliament should seek to make its cancellation of the registration of the Federation fully effective by denying to an officer, employee, agent or member of a non-registered association any capacity to represent an organization or association of employees in any proceedings before the Commission. The sub-section does not attempt to relate the proscription to any former role that a person may have played in the affairs of the non-registered association. It requires a present relationship. Nor does it inhibit full participation by any person in the affairs of a non-registered association save in so far as it affects the proceedings of the Commission.

10. We would discharge the order nisi.

ORDER

Order nisi for writs of mandamus and prohibition discharged with costs.